In the Matter of the Termination of the Parent-Child Relationship of P.L. (Minor Child) L.P. (Father) and K.L. (Mother) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 09 2019, 9:02 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT- ATTORNEYS FOR APPELLEE
FATHER Curtis T. Hill, Jr.
Benjamin J. Church Attorney General of Indiana
Church Law Office
Monticello, Indiana David E. Corey
Deputy Attorney General
ATTORNEY FOR APPELLANT- Indianapolis, Indiana
MOTHER
Mark A. Delgado
Monticello, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination January 9, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of P.L. (Minor Child); 18A-JT-1443
L.P. (Father) and K.L. (Mother), Appeal from the White Circuit
Court
Appellants-Respondents,
The Honorable Robert W.
v. Thacker, Judge
Trial Court Cause No.
Indiana Department of Child 91C01-1710-JT-17

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019 Page 1 of 23
 Services,
Appellee-Petitioner.

Najam, Judge.

Statement of the Case
[1] L.P. (“Father”) and K.L. (“Mother”) (collectively, “Parents”) appeal the trial

court’s termination of their parental rights over their minor child, P.L.

(“Child”). Parents each present a single issue for our review, namely, whether

the State presented sufficient evidence to support the termination of their

parental rights.

[2] We affirm in part, reverse in part, and remand for further proceedings.

Facts and Procedural History
[3] Mother and Father were in a relationship and lived together between 2012 and

early 2015. On November 23, 2015, Mother gave birth to Child.1 In March

2016, the Indiana Department of Child Services (“DCS”) received a report that

1
At the time Mother gave birth to Child, Father did not know that Mother had been pregnant or that he was
the father of Child. A paternity action was filed in June 2016, and the court found Father to be Child’s father
on September 30, 2016.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019 Page 2 of 23
 Mother was neglecting Child and that Mother was leaving Child in the care of

Child’s maternal grandfather, whom Mother knew had abused Child. After

Mother tested positive for marijuana at multiple drug screens, DCS removed

Child from Mother’s care on March 3 and, thereafter, filed a petition alleging

that Child was a child in need of services (“CHINS”).2 At that time, Father was

incarcerated. On May 19, the trial court found Child to be a CHINS and

ordered Parents to participate in services. After a few setbacks, Mother

completed a substance abuse assessment, intensive outpatient treatment, and

relapse prevention.3

[4] Father was released from incarceration in March 2016. However, he was again

incarcerated in September 2016 with a scheduled release date of August 14,

2018. During the six months that Father was not in custody, he did not

participate in services, he only attended one of three scheduled visits with

Child, and he did not express an interest in learning to care for Child. Because

of Father’s incarceration in September 2016, and because DCS had concerns

about Mother’s judgment and ability to properly care for Child, on October 18,

2017, DCS filed a petition to terminate Mother’s and Father’s parental rights

over Child.

2
No party filed a copy of the original CHINS petition in the record on appeal.
3
Mother had to restart relapse prevention twice after she had failed to attend classes, and she had to restart
intensive outpatient treatment once after she had failed a drug screen.

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[5] Following a hearing, the trial court granted the petition on June 6, 2018. In

support of its order, the trial court entered the following findings of fact:

A. FACTS RELATING TO INITIAL REMOVAL OF
CHILD, CHINS ADJUDICATION & DISPOSITIONAL
ORDER.

* * *

4. On March 2, 2016, White County DCS received a report
alleging abuse or neglect by Mother against the child.

5. The report included allegations that Mother left the child in the
care of maternal grandfather, [R.L.], whom she was aware had a
history of committing physical and sexual abuse, as he had
previously abused [M]other. The report further alleged that
Mother continued to leave the child in the care of maternal
grandfather after she was aware that he had physically abused the
child including hitting [C]hild on the buttocks and witnessing
him hit the child in the face.

6. The report further alleged that Mother and possibly maternal
grandfather were using marijuana.

7. DCS investigated and substantiated the allegations.

8. DCS removed the child on an emergency basis on March 3,
2016.

* * *

11. Father is currently on work release.

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 * * *

B. FACTS RELATING TO CONTINUED REMOVAL AND
REASONABLE PROBABILITY REASONS FOR REMOVAL
NOT REMEDIED.

1. Mother has a substantial history with DCS, leading to the
termination of her parental rights as to a previous child.

2. Mother has a history of non-participation. In December of
2015[,] Mother was referred for weekly in-home parenting
services to Healthy Families, however only allowed one in-home
visit.

3. Mother missed many visits with this child. Visitation was
cancelled December 7, 2017, December 11, 2017, December 12,
2017, December 14, 2017, [and] December 21, 2017[,] due to
lack of communication from Mother. Mother missed February
12, 2018[,] when she did not open the door when the child
arrived for visitation.

4. Mother fell asleep during at least 5 visitations, including times
in which she fell asleep holding the child.

5. Mother is resistant to suggestions and attempts to improve her
parenting practices, disregarding expert recommendations.

6. Mother does not follow safe feeding practices as recommended
by Riley pediatrician including no water or grape juice for
infants.

7. No significant progress has been made during the 26 months of
DCS involvement in improving Mother’s parenting practices and
parenting style.
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 8. Mother’s house is not clean and safe for a child. The child had
four documented instances of bed bug bites after visiting
Mother’s house.

9. Mother does not engage in safe sleep practices although having
been repeatedly coached in them. Mother allows the child to
sleep on the foot of her bed.

* * *

12. Mother has not been consistently engaged with services, not
attending therapy from November 3, 2017[,] through January,
2018.

13. Mother does not adequately provide for [C]hild’s medical
needs. On November 23, 2017[,] Mother believed [C]hild had
burned her fingers and needed to go to the emergency room but
chose to ask the foster placement to take the child instead of
taking the child herself during visitation. On November 21,
2017[,] [M]other observed that [C]hild’s buttocks were red and
bleeding but did not take the child to the doctor.

14. Father is currently on work release, to be released August 14,
2018.

15. Father is not currently paying child support for the child.

16. When not incarcerated, the Father had one visitation with the
child and chose not to participate.

17. Father does not know the child and has not bonded with her.

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 18. Father has been incarcerated three prior times, in 2012, 2013,
and 2015.

19. Father does not have the resources available to care for the
child now or when he is released from work
release/incarceration.

20. Michelle Thedans, the ongoing Wabash Valley Therapist for
the Mother since December 14, 2015, testified that as a therapist
she does not believe presently that [Mother] can function in a
caregiving parental capacity. The therapist believes the Mother
has generally made individual progress with the Mother’s ability
to care for herself and meet her own adult needs. However, such
individual therapeutic progress by the Mother over the last two
years, does not amount to the Mother having the skills to be a
provider and caregiving parent to her child. The therapist
testified that the Mother has her diagnosed depression under
control through medication, but the Mother has a high degree of
anxiety which is not controlled and is reflected in the Mother’s
inability to cope with the general and situational pressures of
being [the] caregiving parent to her child.

21. The Guardian Ad Litem [(“GAL”)], Rebecca Trent, testified
that the Mother does not have the capacity and insight to be a
suitable caregiving parent for the child, for the following reasons:
the Mother does not recognize and respond to situations with the
child that need the immediate attention of the parent such as
dangerous situations, illness, and injury; the Mother is
functioning at a low level with regard to the child’s needs with
vague verbal responses to questions regarding the child’s care; the
Mother is not meeting the child’s needs for learning interactions
and will not be able to do so in the future, which results in the
child’s intellectual and physical development and growth being
diminished or delayed; the Mother has only a superficial bond
with the child; and while the Mother has made some individual
personal therapeutic progress, such progress has not been able to
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 sufficiently develop and enhance the Mother’s parenting skills
and attentiveness. The Guardian Ad Litem testified that the
Father does not have the capacity or insight to be a suitable
caregiving parent for the child for the reason that the Father has
no attachment to the child and has not actively participated with
the child during the CHINS case, and the Father’s individual
future is uncertain and unstable due to incarceration and criminal
history. The Guardian Ad Litem recommends the termination of
parental rights as to each parent.

C. TERMINATION IS IN THE CHILD’S BEST INTERESTS
IN THAT:

1. Mother has not made significant progress towards alleviating
the issues that caused the child to be removed from the home.

2. Mother has not participated fully in services.

3. Mother has not been willing or able to improve her parenting
practices.

4. Mother remains unable to provide a safe home environment
for the child.

5. Father is unable to provide a safe home environment for the
child.

6. Termination of the parent-child relationship is now in the best
interests of the child for the reason that the child’s growth and
development require[] a safe and stable home and reasonable
parenting attention, which the child has not received from either
parent and which the evidence establishes the child would not be
expected to receive in the future from either parent.

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 7. The Department of Child Services has a satisfactory plan for
the care and treatment of the child. The plan of adoption is in
the best interest of the child . . . .

Mother’s App. Vol. II at 27-32. Based on those findings, the trial court

concluded that there was a reasonable probability that the reasons for Child’s

removal and continued placement outside the home would not be remedied and

that termination of the parent-child relationships between Parents and Child is

in Child’s best interests. Accordingly, the trial court entered an order

terminating the parental rights of Parents. This appeal ensued.

Discussion and Decision
Standard of Review

[6] We begin our review of this issue by acknowledging that “[t]he traditional right

of parents to establish a home and raise their children is protected by the

Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.

denied. However, a trial court must subordinate the interests of the parents to

those of the child when evaluating the circumstances surrounding a

termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d

832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is

proper where a child’s emotional and physical development is threatened. Id.

Although the right to raise one’s own child should not be terminated solely

because there is a better home available for the child, parental rights may be

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019 Page 9 of 23
 terminated when a parent is unable or unwilling to meet his or her parental

responsibilities. Id. at 836.

[7] Before an involuntary termination of parental rights can occur in Indiana, DCS

is required to allege and prove:

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the
conditions that resulted in the child’s removal or the
reasons for placement outside the home of the
parents will not be remedied.

(ii) There is a reasonable probability that the
continuation of the parent-child relationship poses a
threat to the well-being of the child.

* * *

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of
the child.

Ind. Code § 31-35-2-4(b)(2) (2018). DCS’s “burden of proof in termination of

parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.

Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting

I.C. § 31-37-14-2). If the State fails to prove any one of the statutory elements,

then it is not entitled to a judgment terminating parental rights. See id. at 1261.

[8] When reviewing a termination of parental rights, we will not reweigh the

evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of
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 Fam. & Child. (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

denied. Instead, we consider only the evidence and reasonable inferences that

are most favorable to the judgment. Id. Moreover, in deference to the trial

court’s unique position to assess the evidence, we will set aside the court’s

judgment terminating a parent-child relationship only if it is clearly erroneous.

Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.

Ct. App. 1999), trans. denied.

[9] Here, in terminating Parents’ parental rights, the trial court entered specific

findings of fact and conclusions thereon. When a trial court’s judgment

contains special findings and conclusions, we apply a two-tiered standard of

review. Bester v. Lake Cty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005).

First, we determine whether the evidence supports the findings and, second, we

determine whether the findings support the judgment. Id. “Findings are clearly

erroneous only when the record contains no facts to support them either

directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If

the evidence and inferences support the trial court’s decision, we must affirm.

In re L.S., 717 N.E.2d at 208.

[10] On appeal, Parents each contend that the State presented insufficient evidence

to support the termination of their parental rights. Specifically, both Mother

and Father contend that the trial court erred when it concluded that the

conditions that resulted in Child’s removal and continued placement outside

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 the home will not be remedied4 and that termination was in Child’s best

interests. We address each Parent’s contention in turn.

Mother

Conditions that Resulted in Child’s
Removal will not be Remedied

[11] Mother first contends that the trial court erred when it concluded that the

conditions that resulted in Child’s removal from the home and continued

placement outside the home will not be remedied as to her. In determining

whether the evidence supports the trial court’s conclusion that Mother is

unlikely to remedy the reasons for Child’s removal, we engage in a two-step

analysis. E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind.

2014). “First, we identify the conditions that led to removal; and second, we

determine whether there is a reasonable probability that those conditions will

not be remedied.” Id. (quotations and citations omitted). In the second step,

the trial court must judge a parent’s fitness to care for his children at the time of

the termination hearing, taking into consideration evidence of changed

conditions. Id. However, the court must also “evaluate the parent’s habitual

patterns of conduct to determine the probability of future neglect or deprivation

of the child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind.

Ct. App. 2008) (quotations and citations omitted). Pursuant to this rule, courts

have properly considered evidence of a parent’s prior criminal history, drug and

4
The trial court did not conclude that there is a reasonable probability that the continuation of the parent-
child relationship poses a threat to Child’s well-being.

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 alcohol abuse, history of neglect, failure to provide support, and lack of

adequate housing and employment. Id. Moreover, DCS is not required to rule

out all possibilities of change; rather, it need establish only that there is a

reasonable probability the parent’s behavior will not change. Id.

[12] Mother does not challenge any of the trial court’s findings in support of its

conclusion that the conditions that resulted in Child’s removal will not be

remedied. Rather, Mother maintains that the State presented insufficient

evidence to demonstrate that she was unable to remedy the reasons for DCS’

involvement because she had participated in services, removed herself from the

abusive environment with maternal grandfather and secured her own housing,

and she was progressing in therapy. In essence, Mother contends that the trial

court erred when it terminated her parental rights because she was “doing

everything DCS asked of her.” Mother’s Br. at 11. But Mother’s arguments on

appeal are simply a request that we reweigh the evidence, which we cannot do.

Instead, we must determine whether the evidence most favorable to the

judgment supports the trial court’s conclusions. In re D.D., 804 N.E.2d at 265.

We hold that it does.

[13] During the hearing on the petition to terminate Parents’ parental rights, Family

Case Manager (“FCM”) Brooke Brown testified that she had concerns

regarding Mother’s ability to ensure Child has the appropriate amount of food.

Indeed, FCM Brown testified that there were “numerous” times that Mother

did not feed Child during visitation. Tr. Vol. 2 at 40. Hayley Bradford, a

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 visitor facilitator, testified that Mother “struggled remembering” when to feed

Child and she would frequently not give Child enough food. Id. at 55.

[14] Further, Mother would not give Child medication even though two separate

doctors advised Mother that Child needed the medicine. Bradford testified that

Mother did not make it a priority to call Child’s doctor even when Mother was

concerned with Child’s health. FCM Brown testified to an instance in which

Mother believed that Child had a yeast infection, but Mother informed FCM

Brown that she was going to wait until the following week to call the doctor.

The evidence shows that, on one occasion, Child burned her finger, but Mother

did not “take action” and take Child to the emergency room. Ex. Vol. 4 at 9.

Rather, Mother wanted the foster parents to take Child. And, on another

occasion, Mother noticed that Child’s buttocks were red and bleeding, but

Mother again did not take Child to the doctor.

[15] FCM Brown also testified that, even after twenty-five months of DCS

involvement, she still had concerns about Mother’s ability to maintain a safe

home. She specifically testified that she had those concerns because it would

take Mother weeks to fix problems in her household that could pose a risk to

Child’s health or safety, including one occasion in which it took Mother four

weeks to contact an exterminator after it was discovered that her apartment was

infested with bed bugs. Indeed, the evidence shows that, on four occasions,

Child returned to her foster parents from Mother’s home with “big red bites all

over her” and that her hands were swollen due to an allergic reaction to bed bug

bites. Id. at 6. GAL Trent similarly testified that Mother is unable to recognize

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 potential safety issues, and that Mother will notice a safety problem “only after

someone has mentioned it to her numerous times[.]” Tr. Vol. 2 at 156. Even

then, it still takes Mother a long period of time to address the problem.

[16] In sum, Child was initially removed from Mother’s care and custody due to the

fact that Mother had failed multiple drug screens and due to concerns regarding

Mother’s judgment. And DCS continued to place Child outside of Mother’s

home due to ongoing concerns regarding Mother’s judgment and her ability to

properly care for Child. Mother has a history of forgetting to feed Child, of

disregarding medical advice, of failing to seek medical attention for Child when

it was needed, and of being unable to recognize and address issues with her

apartment. And, even after twenty-five months of DCS involvement, DCS’s

concerns regarding Mother’s judgment and ability to care for Child are

“constant and ongoing” and continued to the date of the termination hearing.

Tr. Vol. 2 at 157. As such, we cannot say that the trial court clearly erred when

it found that the conditions that led to Child’s removal and continued

placement outside of the home will not be remedied.

Best Interests

[17] Mother next contends that the trial court erred when it found that termination

of the parent-child relationship was in the best interests of Child. In

determining whether termination of parental rights is in the best interests of a

child, the trial court is required to look at the totality of the evidence. A.S. v.

Ind. Dep’t. of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).

“A parent’s historical inability to provide adequate housing, stability and
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 supervision coupled with a current inability to provide the same will support a

finding that termination of the parent-child relationship is in the child’s best

interests.” Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct.

App. 2006), trans. denied.

[18] Mother maintains that termination is not in Child’s best interests because

“Mother had completed substance abuse assessment, evaluation[,] and

treatment[;] completed Intensive Outpatient Treatment and Relapse

Prevention[;] and had not had any issues with substance abuse since completing

the most recent Intensive Outpatient Program and Relapse Prevention.”

Mother’s Br. at 13. Mother also contends that termination is not in Child’s best

interests because Mother has secured housing and is bonded to Child. But,

again, Mother’s contentions on this issue amount to a request that we reweigh

the evidence, which we cannot do.

[19] As discussed above, the evidence demonstrates that Mother has a history of

forgetting to feed Child or feeding Child too little. Mother also would not give

Child medication, even after two doctors informed Mother that Child needed

the medicine. Additionally, Mother has a history of neglecting to seek medical

attention for Child when needed. Further, Mother does not recognize safety

problems, and she only notices the problems when someone else points them

out to her. And, even then, Mother takes a long time to address the problems.

Because of Mother’s “constant and ongoing” inability to recognize and address

problems that could be a danger to Child, GAL Trent testified that she believed

that Mother would likely be negligent if Child were to be in her constant care.

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 Tr. Vol. 2 at 157. Accordingly, GAL Trent testified that termination of the

parent-child relationship between Mother and Child is in the best interests of

Child. And FCM Brown also testified that termination is in Child’s best

interests because of concerns with Mother’s stability and judgment.

[20] Based on the totality of the evidence, including Mother’s historical and ongoing

inability to provide a safe and stable home for Child, we cannot say that the

trial court clearly erred when it found that termination of Mother’s rights is in

Child’s best interests. We therefore affirm the trial court’s order terminating

Mother’s parental rights.

Father

[21] Father contends that the trial court erred when it found that the conditions that

resulted in the removal of Child or Child’s continued placement outside of the

home will not be remedied as to him. Specifically, Father contends that the

trial court erred when it made that finding because, as of the date of the hearing

on the petition to terminate his parental rights, he only had four months left on

work release and because he “had made significant strides to improve his life.”

Father’s Br. at 14. Father further contends that the trial court disregarded “the

positive steps [he] has made to better his own life.” Id. at 13. In essence,

Father asserts that the trial court only considered his past behavior but did not

balance that past behavior with the improvements he has made to his life.

[22] Again, to determine whether the evidence supports the trial court’s conclusion

that Father is unlikely to remedy the reasons for Child’s removal, we first

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 identify the conditions that led to Child’s removal and then determine whether

there is a reasonable probability that those conditions will not be remedied. See

In re E.M., 4 N.E.3d at 643. DCS originally removed Child from Mother’s care

and custody for two general reasons: concerns about possible drug use by

Mother and concerns about Mother’s judgment. After DCS had removed Child

from Mother’s home, DCS placed Child in foster care due to Father’s

incarceration. DCS continued Child placement outside of Father’s care

because Father did not initially engage in services and because Father was again

incarcerated shortly after the CHINS proceedings began.

[23] We must agree with Father that, in terminating his parental rights, the trial

court focused only on his past behavior and not on the undisputed

improvements Father has made in his life. We acknowledge that Father has

been incarcerated three times. Indeed, Father admits that he was first

incarcerated in 2012 and then again in 2015. It is likewise undisputed that

Father was released from imprisonment in March 2016 but was thereafter again

incarcerated on September 28, 2016, and he remained incarcerated at the time

of the hearing on the petition to terminate his parental rights.5 It is further

undisputed that, during the six months in 2016 when Father was not

incarcerated, Father did not participate in services, he only attended one of

three scheduled visits with Child, he struggled with alcohol, and he did not

display any interest in learning how to care for Child.

5
It is unclear from the record what offenses Father committed that led to his incarceration in 2012.
However, Father was incarcerated in December 2015 “for a probation revocation.” Father’s Br. at 6.

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[24] But the record also demonstrates that, after Father’s incarceration in 2016, he

took positive steps and made a clear effort to better himself as a person. At the

time of the termination hearing, Father had completed six months of substance

abuse treatment and only had four classes remaining in a program called

“Thinking for a Change.” Tr. Vol. 2 at 142. It is also not disputed that those

were the only services available to Father while he was incarcerated. 6 Further,

Father was on work release at the time of the termination hearing. Father was

employed as a welder, and he “absolutely” anticipated that he would continue

his employment after he completed his term on work release. Id. at 143.

[25] While Father did not yet have housing at the time of the termination hearing

due to his placement on work-release, the State did not present any evidence to

suggest that Father would be unable to obtain appropriate housing upon the

completion of his work-release placement. Rather, the only evidence that the

State presented at the termination hearing regarding Father’s future housing

prospects was FCM Brown’s testimony that she was uncertain where Father

would live. But that testimony does not demonstrate that Father will not be

able to provide appropriate housing for Child. And Father testified that he had

been saving money and that he could “go get a place right now.” Id. at 149.

And, while Father did not substantiate that claim, DCS did not present any

evidence to support a contrary finding. See J.E. v. Ind. Dep’t of Child Servs. (In re

6
FCM Brown testified that the “limited” services available in White County include “services for substance
abuse like the twelve[-]step program, and then . . . there’s another one. I don’t believe they offer fatherhood
engagement in incarceration.” Tr. Vol. 2 at 16.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019 Page 19 of 23
 K.E.), 39 N.E.3d 641, 647 (Ind. 2015) (holding that the trial court’s finding that

Father did not have suitable housing was clearly erroneous when Father

testified that he planned to live with his father upon his release from prison and

when DCS did not present any evidence to support a contradictive finding.).

[26] We acknowledge that, during the six months Father was not incarcerated in

2016, Father did not engage in services, only attended one of three visits with

Child, and did not express an interest in learning to care for Child. But that all

occurred two years prior to the termination hearing. As of the date of the

termination hearing, Father had been engaging in visitation with Child for over

one year, without missing a visit. And those visits were going well. Karen

Travis, a visitation supervisor, testified that Child reaches for Father to pick her

up, and that Child and Father play together and talk to each other. The

evidence demonstrates that Child “grin[s] when she sees Father” and that she

“does not hesitate to reach for [Father’s] hand.” Ex. Vol. 5 at 59-60. Thus,

while Father initially struggled with his responsibilities as a parent, the record

shows that, since his incarceration, Father has maintained a consistent, positive

relationship with Child.

[27] We acknowledge that Father’s record is far from perfect. But a trial court must

judge a parent’s fitness to care for his child at the time of the termination

hearing, taking into consideration evidence of changed conditions. In re E.M., 4

N.E.3d at 643. Here, the evidence demonstrates that, since his incarceration in

2016, Father has worked within his limitations both to better himself by

participating in the services that were available to him and to get to know

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 Child. Accordingly, Father has done everything in his power to remedy the

mistakes of his past.

[28] We recognize that the GAL is concerned that “[w]e have no idea what

[Father’s] future behavior is going to be” and that it would be four months from

the date of the termination hearing “before [Father’s] out before we can even

see if he would be stable . . . enough to care for [Child] and be successful in

doing that.” Tr. Vol. 2 at 159. But as discussed above, since his incarceration

in 2016, Father has completed substance abuse treatment, he has obtained and

maintained stable employment, and he has consistently visited with Child. The

GAL’s testimony, while understandable, is ultimately speculation, which is

insufficient to support the termination of parental rights. Moreover, in light of

Father’s undisputed successful engagement with the only opportunities that

have been available to him, Father “deserves a genuine chance to prove that he

can parent his child.” K.T. v. Ind. Dep’t. of Child Servs. (In re O.G., II), 65 N.E.3d

1080, 1096 (Ind. Ct. App. 2016). While Father may not prove that he can

successfully parent Child, “he has a constitutional right to try.” Id.

[29] We note that Mother and Father are not married, and they do not live together.

This is not a case where Mother and Father continue to live lives that are

intertwined. And Father’s constitutional right to parent his child are

independent from Mother’s. While we cannot say that the trial court clearly

erred when it terminated Mother’s parental rights, under these circumstances,

we find that the evidence does not support the trial court’s conclusion that

Father will not remedy the circumstances that led to Child’s removal from the

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 home and Child’s continued placement outside of the home. 7 We therefore

reverse the trial court’s order terminating Father’s parental rights, and we

remand to the trial court for further proceedings.8

Conclusion

[30] In sum, the trial court did not err when it found that the conditions that led to

the removal of Child from Mother’s home will not be remedied and when it

found that the termination of the parent-child relationship between Mother and

Child is in the best interests of Child. But we hold that the State presented

insufficient evidence to prove that Father will not remedy the conditions that

led to the removal of Child and the continued placement of Child outside the

home. Accordingly, we affirm the trial court’s order terminating Mother’s

parental rights. But we reverse the trial court’s order terminating Father’s

parental rights, and we remand for further proceedings.

[31] Affirmed in part, reversed in part, and remanded.

7
Because the State has failed to prove one of the requirements of Indiana Code Section 31-35-2-4(b)(2), we
need not address Father’s contention that the trial court erred when it found that termination of the parent-
child relationship between Father and Child is in the best interest of Child. See In re G.Y., 904 N.E.2d at 1261
(“if the State fails to prove any of these four statutory elements, then it is not entitled to a judgment
terminating parental rights.”).
8
In his brief on appeal, Father contends that the trial court’s findings that he has not bonded with Child, that
he does not have the resources available to care for Child, that he does not have the capacity and insight to be
a parent because he has no attachment to the Child and has not participated with Child during the CHINS
case, and that his future is unstable and uncertain due to his criminal history are not supported by the
evidence. But, even if we were to agree with DCS that those findings are supported by the evidence, those
findings do not support the trial court’s conclusion that Father will not remedy the reasons for Child’s
removal. Accordingly, we need not address Father’s contention regarding those findings of fact.

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Pyle, J., and Altice, J., concur.

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